UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4524
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORBERTO QUINONES, a/k/a Jose Rosado, a/k/a “J”,
Defendant - Appellant.
No. 07-4525
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEAN ADONIS SIMPSON,
Defendant - Appellant.
No. 07-4667
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LIONEL DEWAYNE GILLIAM, a/k/a Lionel Dewayne Gillium,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:04-cr-00234-RWT)
Submitted: March 18, 2010 Decided: May 21, 2010
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joseph Roll Conte, Washington, D.C.; Parks N. Small, Federal
Public Defender, Columbia, South Carolina; William B. Purpura,
Jr., Baltimore, Maryland, for Appellants. Rod J. Rosenstein,
United States Attorney, Deborah A. Johnston, Michael Pauzé,
Assistant United States Attorneys, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In this consolidated appeal, Norberto Quinones appeals
his convictions of conspiracy to distribute marijuana and crack
cocaine, in violation of 21 U.S.C. § 841 (2006) (Count 1);
conspiracy to possess firearms in furtherance of a drug
trafficking offense, in violation of 18 U.S.C. § 924(c) (2006)
(Count 2); possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841 (Counts 3 and 4); and possession of
a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (Count 5).
Sean Simpson appeals his convictions of conspiracy to
distribute marijuana and crack cocaine, in violation of 21
U.S.C. § 841 (Count 1); conspiracy to possess firearms in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c) (Count 2); possession and discharge of a firearm
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (Count 8); conspiracy to commit carjacking, in
violation of 18 U.S.C. § 2119 (2006) (Count 9); carjacking, in
violation of 18 U.S.C. § 2119 (Counts 10 and 14); possession and
discharge of a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c) (Counts 11 and 15); murder, in
violation of 18 U.S.C. § 924(j) (2006) (Count 16); and
possession of a firearm by an unlawful drug user, in violation
of 18 U.S.C. § 922(g)(3) (Count 22).
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Lionel Gilliam appeals his convictions of conspiracy
to distribute marijuana and crack cocaine, in violation of 21
U.S.C. § 841 (Count 1); conspiracy to possess firearms in
furtherance of a drug trafficking offense, in violation of 18
U.S.C. § 924(c) (Count 2); possession and discharge of a firearm
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (Counts 6, 8, 17, 19); murder, in violation of
18 U.S.C. § 924(j) (Counts 7, 16, 18, 20); conspiracy to commit
carjacking, in violation of 18 U.S.C. § 2119 (Count 9);
carjacking, in violation of 18 U.S.C. § 2119 (Counts 12, 14);
possession and discharge of a firearm in furtherance of a crime
of violence, in violation of 18 U.S.C. § 924(c) (Counts 13, 15);
and possession of a firearm by an unlawful drug user, in
violation of 18 U.S.C. § 922(g)(3) (Count 21).
I. Quinones’s issues
A. Joinder of Defendants
Quinones raises two related issues on appeal. First,
Quinones contends that the district court erred in denying his
motion for a separate trial. Quinones argues that, as he was
not charged with any of the violent crimes with which the other
two Defendants were charged, he was greatly prejudiced by the
admission of evidence of such crimes in his trial, as this
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evidence would not have been admissible against him had he been
tried alone.
We review de novo whether the initial joinder of
defendants was proper under Fed. R. Crim. P. 8. United
States v. Mackins, 315 F.3d 399, 412 (4th Cir. 2003). However,
even if initial joinder was proper, Fed. R. Crim. P. 14 provides
for severance where joinder “appears to prejudice a defendant or
the government.” This court reviews a district court’s refusal
to sever for abuse of discretion. Mackins, 315 F.3d at 412.
The burden of demonstrating prejudice lies with the party
seeking severance. See United States v. Branch, 537 F.3d 328,
341 (4th Cir. 2008).
Here, Quinones makes no argument that initial joinder
was improper under Rule 8. Therefore, we review the district
court’s denial of Quinones’s pretrial severance motion for abuse
of discretion. A court abuses its discretion “only where the
trial court’s decision to deny a severance deprives the
defendants of a fair trial and results in a miscarriage of
justice.” United States v. Harris, 498 F.3d 278, 291 (4th Cir.
2007). There is no miscarriage of justice where “the verdicts
demonstrate that the jury meticulously sifted through the
evidence and appraised the independent evidence against each
defendant.” United States v. Ford, 88 F.3d 1350, 1361 (4th Cir.
1996). After reviewing the record, we find that Quinones fails
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to demonstrate that the district court’s refusal to grant his
severance motion deprived him of a fair trial or resulted in a
miscarriage of justice. Accordingly, this issue is without
merit.
B. Joinder of conspiracy and carjacking charges
Next, Quinones contends that the conspiracy and
carjacking charges were improperly joined under Rule 8(b) of the
Federal Rules of Criminal Procedure. Rule 8(b) provides:
The indictment or information may charge 2 or more
defendants if they are alleged to have participated in
the same act or transaction, or in the same series of
acts or transactions, constituting an offense or
offenses. The defendants may be charged in one or
more counts together or separately. All defendants
need not be charged in each count.
We review de novo whether offenses in an indictment are properly
joined. United States v. Cardwell, 433 F.3d 378, 384-85 (4th
Cir. 2005). Joinder is proper where the offenses have a logical
relationship with one another. Id. at 385. A logical
relationship exists “when consideration of discrete counts
against the defendant paints an incomplete picture of the
defendant’s criminal enterprise.” Id. Having reviewed the
record, we find that the carjacking and narcotics charges were
properly joined, and this issue is similarly without merit.
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II. Simpson’s and Gilliam’s issues
A. Admission of Iesha Johnson’s testimony
In their first issue, Simpson and Gilliam contend that
the district court erred in allowing the grand jury testimony of
Iesha Johnson, in the form of an audio tape and a transcript, to
be introduced as trial exhibits. Though Simpson and Gilliam
concede that the evidence was admissible under Fed. R. Evid.
801(d)(1)(A) (prior inconsistent statement), they nevertheless
contend that allowing the statement to be included in various
forms as exhibits at trial was unfairly prejudicial, in
violation of Fed. R. Evid. 403. We review a district court’s
evidentiary rulings for abuse of discretion. United States v.
Kelly, 510 F.3d 433, 436 (4th Cir. 2007).
Under Rule 403, relevant evidence “may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice.” However, the record reflects that the
district court properly considered the probative versus
prejudicial value of the evidence when allowing it to be
submitted to the jury as an exhibit. Accordingly, we find that
the district court did not abuse its discretion in allowing
admission of Johnson’s grand jury testimony. *
*
Though not fully addressed in the Defendants’ original
brief, Defendants argue in their reply brief that the district
court erred in allowing Iesha Johnson’s statement to the police
(Continued)
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B. Cross-examination of Iesha Johnson
During cross-examination, Gilliam’s counsel twice
sought to question Johnson as to the reason her grand jury
testimony differed from her trial testimony. The Government
objected each time, contending that the question was
inconsistent with Johnson’s testimony on direct examination that
she never appeared before the grand jury. The judge sustained
each objection. On appeal, Gilliam and Simpson assert that
denying their counsel the opportunity to inquire into the
inconsistency deprived them of their Sixth Amendment right to
cross-examine Johnson.
We review a trial court’s limitations on a defendant’s
cross-examination of a witness for abuse of discretion. United
States v. Smith, 451 F.3d 209, 220 (4th Cir. 2006). If a
constitutional error is demonstrated, it is then subjected to
harmless-error analysis. See Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986). Though the Sixth Amendment guarantees the
accused the right to cross-examine witnesses against him, such a
right is not unlimited. See id. at 678-79. Instead, “trial
to be admitted as a jury exhibit, in violation of Fed. R. Evid.
803(5). However, as this issue was not articulated in
Defendants’ original brief, it is not properly before us on
appeal. Cavallo v. Star Enterprise, 100 F.3d 1150, 1152 n.2
(4th Cir. 1996).
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judges retain wide latitude . . . to impose reasonable limits on
such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Id. After reviewing the record, we find
that the district court did not unreasonably limit Gilliam’s
cross-examination of Iesha Johnson.
C. Joinder of drug and carjacking charges
Finally, Simpson and Gilliam contend that the district
court erred in refusing to sever the carjacking counts from the
narcotics charges. However, for the same reasons stated in
section I.B., above, we find that the carjacking and narcotics
charges were properly joined. Therefore, Simpson’s and
Gilliam’s claims are without merit.
Accordingly, we affirm the judgment of the district
court and deny Quinones’s motion to file a pro se supplemental
brief. We dispense with oral argument because the facts and
legal contentions are adequately addressed in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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